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Comments and Testimonies
RE:
Docket #OGC-2003-0005
December
22, 2003
U.S. Environmental Protection Agency
EPA Docket Center
EPA West, Rm. B102
1301 Constitution Ave. NW
Washington, DC 20460
Dear Secretary Leavitt:
Clean Air Council, a non-profit organization
incorporated and existing under the laws of the Commonwealth
of Pennsylvania, submits the following timely comments to
the above-referenced docket, EPA's Proposed Settlement
Agreement, Clean Air Act Petitions for Review.
The proposed settlement between EPA and
the industrial petitioners is contrary to law and is otherwise
not appropriate for agency final action. EPA's action in
this matter would, in many instances, eliminate the requirement
that major sources of air pollution subject to the Clean
Air Act's Title V program (42 U.S.C. §7661-7661f) perform
monitoring sufficient to determine whether they are in compliance
with their Title V permit and the underlying regulatory
requirements.
A primary purpose of the Title V Permit
Program is to provide the public with a single, comprehensive
location for all of the air quality requirements that apply
to a facility. This permit for all major sources of air
pollution gives the public a practicable opportunity to
know whether the facility is in compliance with its permit.
Congress' intent to provide a role for the public in assuring
industry follows the law is also demonstrated by the Clean
Air Act's citizen suit provisions at §304. It is essential
that the public have access to adequate data through which
to form an opinion as to whether a facility is in compliance,
and the same need also exists for EPA and State permitting
authorities who are charged with day-to-day enforcement
of the law. It is thus very disturbing that EPA now proposes
to re-interpret its own rules to mean that as few as two
monitoring events in a five-year permit term will satisfy
the Act's monitoring requirements.
The Clean Air Act's Title V establishes
the need for periodic and sufficient monitoring in three
locations. §504(a) in pertinent part includes a requirement
for submittal to the EPA: "no less often than every
6 months, the results of any required monitoring, and such
other conditions as are necessary to assure compliance."
§504(b) calls for monitoring by continuous emissions
monitors or other methods if they "provide sufficiently
reliable and timely information for determining compliance."
§504(c) states that "(E)ach permit issued under
this subchapter shall set forth inspection entry, monitoring,
compliance, certification, and reporting requirements to
assure compliance with the permit terms and conditions."
(Emphasis mine)
In general provisions, the Act at §114(a)(3)
further directs that "the Administrator shall in the
case of any person which is the owner or operator of a major
stationary source…require enhanced monitoring
and submission of compliance certificates." 42 U.S.C.
§7414(a)(3). (Emphasis mine)
The rules implementing Title V are found
in 40 CFR Part 70 and Part 71, for State Operating Permit
Program and Federal Operating Permit Program, respectively.
The provision at §70.6(a)(3)(i)(B) is known as the
periodic monitoring rule as it calls for "periodic
monitoring sufficient to yield reliable data from the relevant
time period that are representative of the source's compliance
with the permit" in circumstances where the underlying
applicable requirement does not already contain periodic
monitoring. A second provision at §70.6(c)(1) requires:
"…monitoring…sufficient to assure compliance
with the terms and conditions of the permit." This
sufficiency monitoring rule has been interpreted by the
agency as establishing separate regulatory authority to
provide additional monitoring where an applicable
requirement may indeed contain some level of periodic monitoring
but which the agency deems is inadequate to assure compliance.
The industrial petitioners have sought
changes to these sections of the Part 70 and Part 71 rules,
citing uncertainty created by two federal court decisions
and two agency adjudicatory orders in the last several years.
As a result, on September 17, 2002 (67 FR 58561) EPA proposed
to eliminate prefatory language that industry claimed blocked
EPA from using the "sufficiency rule" to provide
additional monitoring where some amount of periodic monitoring
was provided for under the applicable requirement.
Industrial petitioners brought Petitions
for Review before the DC Circuit to challenge EPA's interpretation
of these rules and the proposed agency action. The proposed
settlement today would resolve those claims.
Clean Air Council strongly urges EPA to
withdraw the proposed settlement. EPA's rationale in its
September 2002 proposed rule was sound-the Act provides
EPA with several provisions in §504 and §114 that
give it the requisite authority and specifically charge
the agency with the duty to assure that compliance can be
determined from monitoring. Congress' intent was clear.
EPA would abdicate its duty to carry out the law and protect
the public health if it were to enter this settlement and
allow major sources of air pollution the opportunity to
keep the public and government regulators in the dark as
to compliance performance under Title V permits. It is patently
unreasonable for EPA to make the case that monitoring as
little as twice in five years is sufficient to assure compliance.
A re-interpretation of Part 70 and Part 71 regulations to
allow such a result will violate the Clean Air Act. Furthermore,
the §114 requirement of enhanced monitoring for major
sources is not satisfied where EPA simply approves of clearly
inadequate periodic monitoring present in state or federal
applicable requirements.
Rather than demonstrate another instance
of this Administration's disregard for public health, the
Agency should refuse this settlement and expend appropriate
resources to defend its previous findings that lend meaning
to the sufficiency monitoring rule.
Sincerely,
Michael Fiorentino, Esq.
Air Program Manager
Joseph Otis Minott, Esq.
Executive Director
135 S. 19th St.
Suite 300
Philadelphia, PA 19103
215-567-4004
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